Hampshire County Council (18 007 583)

The Ombudsman's final decision:

Summary: Ms X says the Council unreasonably refused to meet a duty to investigate and compile a report for a court under the Adoption and Children Act 2002. The complaint was closed because we did not find fault by the Council.

The complaint

Ms X says the Council unreasonably refused to meet a duty to investigate and compile a report for a court under the Adoption and Children Act 2002.

Ms X says the Council’s inaction has caused a delay which is prejudicial to her child and leaves her child in a precarious position if she leaves her present abode. Ms X says she has incurred significant costs in establishing the Council failed to act in accordance with its obligation. Ms X wants the Ombudsman to instruct the Council to act in accordance with its duty. She also wants the Council to reimburse her legal costs.

The Ombudsman’s role and powers

We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

How I considered this complaint

What I found

This section sets out the procedure for submission of a notice of intention to adopt by a person wishing to adopt a child who is not placed for adoption with them by an adoption agency.

The sections of Section 44 that apply to this complaint are as follows:

(2) An adoption order may not be made in respect of the child unless the proposed adopters have given notice to appropriate local authority of their intention to apply for the adoption order (referred to in this Act as a “notice of intention to adopt”).

(3) The notice must be given no more than two years, or less than three months, before the date on which the application for the adoption order is made.

(5) On receipt of a notice of intention to adopt, the local authority must arrange for the investigation of the matter and submit to the court a report of the investigation.

(9) In this section, references to the appropriate local authority, in relation to any proposed adopters, are –

(a) in prescribed cases, references to the prescribed local authority,

(b) in any other case, references to the local authority for the area in which, at the time of giving the notice of intention to adopt, they have their home.

Background

Ms X is a British national who lives abroad in country A. Ms X lives abroad but her mother lives within the Council’s area. Whenever she returns to the UK she stays with her mother.

Ms X wishes to adopt a child from a third country, country B. She has looked after the child in question since 2011.

Ms X served the Council with notice of intention to adopt in 2016. The Council’s response was that Ms X is domiciled in Country A rather than the UK. It refused to conduct an investigation required by section 44(5) of the Adoption and Children Act 2002 (hereafter to be referred to as the Act). The Council said Ms X could apply to the courts for an adoption order and the issue of her domicile/residence could be tested there. It would then abide by the decision of the court.

Ms X says section 44(5) is mandatory. She refers to legal advice she obtained that suggests the matter of her domicile is irrelevant and the Council was bound to act on section 44(5) when she served notice of her intention to adopt.

Analysis

I have considered the process that led to the Council’s judgement. Section 44(9) says the relevant local authority is the local authority for the area in which the person serving notice has a home. If section 44 (9) is to be taken literally it means that the issue of residence has to be determined before the mandatory nature of section 44 (5) is activated. It may also be that the issue of residence could be determined at the same time as activation of section 44(5).

Ms X believes section 44(5) stands alone and the matter of her domicile is irrelevant but I have seen nothing in her submission to the Ombudsman that addresses section 44(9).

With section 44 (9) in mind, I cannot criticise the Council for concluding Ms X would have to apply to the courts for a determination on her residence before it commences an investigation under section 44 (5). It is not for the Ombudsman to determine the law. So, I cannot say whether Ms X’s view of the operation of section 44 of the Act is correct compared to the Council’s view. That is a matter for the courts to determine.

But I do not find fault with the Council’s decision that it could not initiate an investigation under section 44 (5) pending resolution of the matter of Ms X’s domicile.

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